Illegal Substance Abuse and Protection from Discrimination in Housing and Employment: Reversing the Exclusion of Illegal Substance Abuse as a Disability

When landlords or employers know that someone is using opioids, either legally or illegally, the consequences can be significant. Rental housing or employment are both critical to well-being, yet may be at particularly high risk. As this Article argues below, legal protections in these areas are inadequate. To summarize the argument briefly, a crucial legal problem for people suffering from substance abuse disorders is that current illegal use of controlled substances is excluded from the definition of disability in federal anti-discrimination statutes.

A history of substance abuse is a disability protected from discrimination, but recent relapses vitiate this protection. Relatedly, federal law still criminalizes the medical use of marijuana and federal anti-discrimination law reflects the federal prohibition rather than legalization under state law. The legal use of prescription opioids and medication assisted treatment (MAT) is protected under anti-discrimination law, but many employers subject MAT patients to increased scrutiny and others continue to insist on drug free workplace policies that prohibit their employment.